Opinion
Court of Appeals No. A-11262 Trial Court No. 3PA-11-659 CR No. 6055
05-07-2014
MARY J. PETERSON, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Megan R. Webb, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Lindsey M. Burton, Assistant District Attorney, Palmer, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding precedent for any proposition of law.
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Palmer, David Zwink, Judge.
Appearances: Megan R. Webb, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Lindsey M. Burton, Assistant District Attorney, Palmer, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge.
Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution and Administrative Rule 24(d).
Judge HANLEY.
Mary J. Peterson appeals her conviction for driving under the influence. She argues she was illegally seized when the police initially contacted her. Based on the totality of the circumstances found by the trial court, we conclude that Peterson was not illegally seized. Therefore, we affirm her conviction.
AS 28.35.030.
Facts and proceedings
On March 18, 2011, at around 2:00 a.m., Alaska State Troopers Scott Lanier and Andrew Ballesteros responded to a report of a suspicious vehicle parked in a pull-off near an intersection in Sutton. According to the information provided by the caller, the vehicle had been parked in this location for almost two hours before the troopers arrived. The troopers parked their vehicle approximately thirty to forty feet from Peterson's car. Their headlights and spotlight were directed at Peterson's car, and they turned on rear-facing amber flashing lights and strobe lights on the back of the patrol car for their safety.
Trooper Lanier approached Peterson's driver's side door and made contact with her while Trooper Ballesteros stood by the back of the car. Trooper Lanier immediately noticed signs of impairment and initiated a DUI investigation. The State ultimately charged Peterson with driving under the influence.
Prior to trial, Peterson filed a motion to suppress all of the evidence stemming from the contact, arguing the troopers conducted an unlawful seizure when they initially contacted her. Distinguishing Peterson's case from other cases in which a seizure occurred, District Court Judge David Zwink denied Peterson's motion. He concluded the troopers' use of the rear-facing lights did not constitute a show of authority indicating a seizure, but rather were like a vehicle's emergency lights.
Peterson filed a motion to reconsider, arguing the court's findings were insufficient to conclude that no seizure occurred. Judge Zwink denied Peterson's motion for reconsideration. Judge Zwink found the troopers did not block Peterson in, they did not use their overhead red and blue lights, and the troopers' behavior of approaching Peterson's car together, with one waiting at the back of the car while the other contacted Peterson, did not amount to a show of authority directing Peterson to stay put.
After denying Peterson's motion, Judge Zwink conducted a bench trial and found Peterson guilty of DUI. Peterson appeals.
Discussion
Whether a stop has occurred is a mixed question of fact and law. This Court reviews the trial court's factual findings under the clearly erroneous standard but applies its independent judgment to the question of whether, under those facts, the police committed a seizure. We view the evidence in the light most favorable to upholding the trial court's ruling.
Majaev v. State, 223 P.3d 629, 631 (Alaska 2010).
State v. Joubert, 20 P.3d 1115, 1118 (Alaska 2001); see also Hubert v. State, 638 P.2d 677, 683 (Alaska App. 1981) ("[A]s to disputed factual issues which were not expressly resolved by findings of the superior court, it is well established that we must view the evidence in the record in the light most favorable to the prevailing party[.]").
To decide whether a seizure has occurred, we must consider all of the circumstances surrounding the contact and determine whether the police conduct would have communicated to a reasonable person that she was not free to decline the officers' requests or otherwise terminate the encounter.
Waring v. State, 670 P.2d 357, 364 (Alaska 1983).
In Ozhuwan v. State, we concluded a reasonable person would not have felt free to leave when the officer parked his patrol car approximately thirty feet from two cars parked at night in a campground boat launch, positioned his vehicle to partially block their exit, had his bright lights on, turned on his overhead flashing red lights, and walked to the passenger side of one of the vehicles and shined his flashlight inside.
786 P.2d 918 (Alaska App. 1990).
Id. at 920-21.
In contrast, we held there was no stop in Barrows v. State, in which the officer parked near a van that was already stopped on a public road, did not block the van in, did not use overhead lights, walked up to the van, conversationally questioned the driver and passenger, and asked for identification.
814 P.2d 1376 (Alaska App. 1991).
Id. at 1377-79; see also Peterson v. State, 133 P.3d 730, 731-32, 734 (Alaska App. 2006) (no stop where officer stopped near a parked car, approached on foot, tapped on window, shined flashlight to get driver's attention, and stated he needed to speak to the driver).
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In Peterson's case, the troopers arrived to investigate a vehicle that had been parked in a highway turn-out for almost two hours. They parked their patrol car near Peterson's vehicle, but in a manner that did not block Peterson from leaving. They did not turn on their red and blue lights, but they did turn on rear amber lights as a safety precaution because they had parked their patrol car just off the highway in the dark. The officers also shined a spotlight on Peterson's car so they could see the interior of the car as they approached it on foot.
Given the situation, a reasonable person would not have interpreted the troopers' actions as an arrest or an investigative seizure. Rather, the troopers' actions were consistent with, and did not exceed, the kind of measures that the troopers reasonably could be expected to adopt to ensure their safety as they parked their patrol car near a roadway and approached Peterson's vehicle in the dark to see what was happening.
Conclusion
We AFFIRM the judgment of the district court.